The federal government's Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2023 was passed on 12 February 2024. It contains provisions relating to the "right to disconnect", which will come into effect 6 months following the passage of the bill into law. This policy is designed to entrench a simplified version of those requirements to allow employers to comply with the legislation. It can also be used before the legislation becomes effective, in order to provide employees with a better work-life balance sooner rather than later, or to prepare ahead for the new requirements.

The “Right to Disconnect” is focused on granting employees the right to refuse to respond, monitor or engage with any work-related communications from their employers or third parties outside their working hours. The employer may not instigate any negative consequences following such a refusal.

What Does the Amendment Do?

The amendment adds section 333M to the Fair Work Act, which stipulates as follows:

• Employees have the power to refuse to monitor, read, or respond to any contact or attempted contact from their employer or related third-parties if it occurs beyond their assigned work hours.
• There is an exception- where the refusal is considered unreasonable. Certain factors may be considered when deciding if a refusal is ‘unreasonable.’ They include the contact’s intended purpose, the method of contact and the level of disruption it causes for the employee, the extent of compensation provided for remaining accessible outside regular work hours or working additional hours, the nature of the employee’s role and level of responsibility, and any personal circumstances, such as family or caring responsibilities. An employee’s refusal to respond to contact outside work hours will be unreasonable if the contact is legally required.
• To effectively entrench this right, the new section prohibits employers, or their representatives (such as managers and supervisors), from taking adverse action against an employee exercising this right.
• If the employment falls under an enterprise agreement offering a more favourable ‘right to disconnect’ term than those specified in the section, these more generous terms will continue to apply to the employee.

What Are the Consequences of an Employer Breaching this Right?

This right will be treated as part of the General Protections under Part 3-1 of the Fair Work Act.

Where an employer or their representative contravenes these provisions, the affected employee may lodge an enquiry with the Fair Work Ombudsman, or initiate a dispute. Disputes must be addressed at the workplace level as a first step before being escalated to the Fair Work Commission.

The Fair Work Commission may then issue a fine and/or a legally enforceable “stop order”. If the contravention is accompanied by a dismissal, employees must bring the case before the Fair Work Commission as an unfair dismissal claim.

Impact on Employers and Employees

The amendment signals a shift in the Australian employment landscape. 

Impact on Employees

Above all, the right to disconnect will serve as a legal buffer for employees, allowing them the right to unplug and separate from their work responsibilities after hours. This is an essential measure to safeguard mental health and promote a healthy work-life balance.

Impact on Employers

On the flip side, employers must now navigate how to align business operations to complement this updated legislation. This may involve reassessing expectations with clients and within workplaces regarding outside-hours communications and adjusting compensation strategies to accommodate after-hours work in case of emergencies. Employers must also be cautious of the prohibition against taking adverse action.

What does the Right to Disconnect Policy include?

• Scope (to whom this applies).
• The substance of the right, including exceptions.
• Whom to contact for queries.
• The relationship between the policy and legislation.